By Ramon Jackson on Wednesday, January 31, 2001 - 07:11 pm:

Federal Computer Week reports in Guidance coming on FSS services that "GAO's review of 22 IT services buys from DOD — totaling more than $112 million — found that in 17 cases contracting officers did not follow GSA and FAR procedures."

The report, GAO-01-125, raises some interesting questions. Among them is this:

"In these examples and in other orders we reviewed, the contracting officers did not solicit quotes, as called for by GSA's ordering procedures, and generally did not seek price reductions from contractors. Moreover, on 17 of the orders we reviewed, contracting officers often relied solely on labor rates to make a decision on acquiring information technology services. Such rates do not provide a meaningful basis for assessing which contractor is providing the best and most cost-effective services since they do not reflect the total cost of the order or important aspects such as the number of hours and mix of labor skill categories needed to complete the work."

Aren't these basic to a business review of services? Lack of at least cognizance of number of hours and skill mix related to total cost? Were these people asleep or was there a mistaken idea that all these had been fully resolved by GSA and nothing more was needed? Was it really lack of information and guidance on these service schedules or lack of due diligence?

By Anonymous on Wednesday, January 31, 2001 - 07:53 pm:

Ramon,

I believe the problem is that the regulations state ordering agencies must examine offerings from GSA Scedule vendors and select the one providing the best value. In the case of services, this can be construed as selecting one vendor on some basis like comparing contract rates and negotiating a level of effort and mix. However GSA made a change in ttheir ordering pprocedures (not part of the FAR) that requires agencies to solicit price quotes (ideally on a FFP basis) from at least three sources.

Take a look at what part 8 of the FAR says and compare with the GSA ordering instructions. If you remember how agencies use to order services from Schedules, you'll see how the confusion results. Of course, there is no excuse for not staying current with what occurs in our profession but that's another story.

By Eric Ottinger on Thursday, February 01, 2001 - 09:05 am:

Ramon & Anon,

The answer is actually rather simple. The GSA schedule contracts require quotes for IT but not for other services.

For GSA schedule contracts other than IT, it is sufficient to compare price lists.

If a PCO assumes that all FSS services are awarded in the same manner, he/she could easily make this mistake.

The pattern was rather interesting. One buying office got it 100% right (Hanscom), and everyone else in the sample got it 100% wrong.

As I have commented previously, the advertising in the subway doesn't include all of this fine print. And that can put the PCO in a difficult position vis a vis the technical customer.

Eric

By John Ford on Thursday, February 01, 2001 - 09:05 am:

Anon and Ramon, a point that needs to be emphasized is that the GSA guidelines are not in the FAR nor does the FAR require agencies to follow them. Moreover, they are stated as guidelines not as regulatory requirements. As such their applicability and binding effect is questionable. To me, it is unfair and unreasonable to fault people for not adhering to guidelines published by another agency that are not a part of any regulatory system. Contracting officers and others are free to follow guidelines as they deem it appropriate in a given circumstance. If the FAR Council wants contracting officers to follow the GSA guidelines, they should be incorporated into the FAR using the formal rule promulgation process for FAR cases. Remember, the GSA guidelines were not subject to that process.

By Anonymous on Thursday, February 01, 2001 - 11:08 am:

Unless I have misread the FAR at 8.404 it clearly states that at least three schedules will be examined and that the order shall be based on best value. I did not see any mention of "IT".

By Anonymous on Thursday, February 01, 2001 - 11:57 am:

The website for FSS, at least when describing ordering procedures for services (executive, admin, other professional), says that ordering offices shall...prepare and transmit RFQs to at least 3 contractors.

I ran into problems when the requirements people would point to the FAR language and say that everything was fine and fair and reasonable already, just do it. Also found that some of the published schedules prepared by the Contractors stated the process for ordering by simply saying "place an order" (without referencing the language about getting quotes). This may have changed.

By Eric Ottinger on Thursday, February 01, 2001 - 12:45 pm:

John & Anon,

These aren't guidelines. These procedures are specified in the IT contracts.

Eric

By Anonymous on Thursday, February 01, 2001 - 01:54 pm:

Eric,

The new requirement applies to just about all services for professional services, not just IT. The most notable non-IT schedule is MOBIS (management, organizational, and business improvement) but there arev lots of others.

By Anon 11:08 on Thursday, February 01, 2001 - 02:33 pm:

Anon 1:54

You are absolutly correct.

By Eric Ottinger on Thursday, February 01, 2001 - 02:46 pm:

Anon & Anon,

Could you be more specific about the "new requirement." Are they posted somewhere that our loyal readers can easily access?

I take it you are saying that the rules which previously applied only to IT are now more generally applicable to FSS services contracts. Is this correct?

Eric

By Anonymous on Thursday, February 01, 2001 - 04:06 pm:

Eric,

Here you go. Also they apply to all professional services (I believe, at least from the title of this web page.)

http://www.fss.gsa.gov/schedules/ordinssv.cfm

By Anonymous on Friday, February 02, 2001 - 12:07 am:

I have trouble understanding what these people thought they were ordering. Services aree different from boxes of stuff. You order 10 gross of pencils with things pretty clear. Did they think they were ordering 1 programmer, 2 data specialists and 1 network analyist in some sort of standard package? Were they buying that package to do something 2 software engineers and 3 network engineers would be suited for?

Considering level of effort and labor mix and the job to be done is basic to ordering any service. Without a regulation is common sense abandoned?

By John Ford on Friday, February 02, 2001 - 09:52 pm:

Eric, I am going to have to disagree with your statement that these procedures are in the schedule contracts. Our company has one such contract and there is nothing in it about the ordering agency getting quotes from three schedule holders. Also, in our role of supporting DoD in its acquisition of supplies and services, I have had occasion to review several schedule contracts for services. None of them have this requirement in it. It is well to note that these guidelines are several pages long and would be quite obvious if they were incorporated in a contract. Finally, GSA places several orders for IT services for us off GSA schedules. The GSA offices that place those orders do just what the FAR says to do, look at schedules. They have never sought quotes from schedule holders except the one chosen by the schedule comparisons.

By C Mercy on Monday, February 05, 2001 - 08:20 am:

John
Were they buying IT or IT services?

By John Ford on Monday, February 05, 2001 - 02:58 pm:

C, both, but primarily services.

By Eric Ottinger on Monday, February 05, 2001 - 06:30 pm:

John and All,

In my experience, the ordering procedures have been included in the terms and conditions of the GSA Schedule Contracts.

Here is an example (selected more or less at random off of the GSA web site.)

http://www.appliedsciences.com/terms.html#24

I thought this would be easy to verify. As it turned out, I had to go to the contractor web sites, and that was hit and miss.

If nothing else, we are illustrating the confusion and lack of clarity indicated in the GAO report.

Eric

By Anonymous on Tuesday, February 06, 2001 - 10:18 am:

Here's something else to add to the confusion. The ordering instructions state agencies must obtain price quotes from three contractors. How does price fit into "best value" or "lowest overall cost" selection? Are agencies required to notify contractors how the evaluation will be conducted? Should criteria be included with the RFQs to allow contractors to provide information?

GAO decisions on FFS ordering state the Comptroller General normally won't entertain protests on ordering unless agencies elect to use formal selection processes (i.e.; FAR part 15). If so, is it better to just obtain pricing info and do the evaluation without having contractors respond?

By Eric Ottinger on Tuesday, February 06, 2001 - 08:55 pm:

All,

The following is an example of professional services ordering instructions:

“PROFESSIONAL ENGINEERING SERVICES GSA SCHEDULE CATALOG AND PRICELIST”

http://www.tasc.com/federal/pes/

By contrast, here are “terms and conditions” ordering instructions for IT:

II. TERMS AND CONDITIONS APPLICABLE TO INFORMATION TECHNOLOGY (IT) PROFESSIONAL SERVICES (SPECIAL ITEM NUMBER 132-51)

http://www.tasc.com/federal/it/

The ordering procedures use both the imperative “shall” and the less imperative “should.” The three quote procedure is a “should,” which would appear to allow for some discretion.

The more I look into this the less I know. An off-line communication indicates that for professional services it was acceptable to merely compare price lists until fairly recently, at which point the three quote language was added to the instructions for professional services contracts.

In any case, the ordering instructions are identified as "terms and conditions" for the IT contracts but not for the professional services contracts.

I’ve looked at both the GSAM and the GSAR and I haven’t found this language in either document.

Anon,

Here are GSA’s thoughts on best value.


http://www.fss.gsa.gov/schedules/bestvalue.cfm

Eric

By John Ford on Wednesday, February 07, 2001 - 10:11 am:

One unknown in all this discussion, is when GSA decided to publish these "guidelines." From the evidence I have been able to gather, these procedures did not come into being until 1999. Thus, it is possible that some schedule contracts could have these procedures as a term or condition and some may not.
For GAO's view on this issue, see Computer Products, Inc. B-284702 (24 May 2000). This decision seems to indicate some schizophrenia on the part of GAO regarding these procedures. Another interesting point, the FAR is a regulation having the force and effect of law. What authority does GSA have to publish procedures or implement contract terms that supercede the FAR?

By bob antonio on Wednesday, February 07, 2001 - 01:00 pm:

John:

GSA has their authority under the Federal Property and Administrative Services Act (FPASA) as a central supplier or source of items. The Federal Acquisition Regulation (FAR) has its legal base in the Office of Federal Procurement Policy (OFPP) Act. Interestingly, the OFPP Act identifies GSA (from its old authority under FPASA), DoD, and NASA as the writers of the FAR and the OFPP Act places the FAR Secretariat in GSA .

If there is a conflict between the Small Business Administration's small business regulations and the FAR, the FAR is considered a subordinate regulation by the Comptroller General and the Courts. I would assume, that based on GSA's authority under FPASA, that if push came to shove, GSA's rules in regard to its procurement vehicles would make the FAR a subordinate regulation.

Now if there was a labor issue involving a small business on a GSA schedule which involved some interpretation of the FAR, I believe it is settled in the following fashion.

The Department of Labor, the Civilian Agency Acquisition Council, the Defense Acquisition Council, and the Small Business Administration would all be required to send a champion to the Mall at high noon on the first Monday of the fiscal year. There the champions would battle it out until someone gives up. Of course, the Administrator of Federal Procurement Policy, acting under the authority of the OFPP Act, would referee the contest and declare a victor. In those cases, it is clear that the OFPP Act would overrule FPASA. GSA just must be careful to avoid such situations.

By Anonymous on Wednesday, February 07, 2001 - 04:33 pm:

Another point is many people feel the FAR should not get into the level of detail where it prescribes ordering on specific types of GSA contracts. In this case, the issue just concerns services of a professional nature.

By Eric Ottinger on Wednesday, February 07, 2001 - 06:33 pm:

John, Bob and All,

Just a guess. GAO has long taken the view that it is not enough to just compare categories and rates in a competitive source selection when the agency should also consider the mix and any creative, more efficient ideas that the offeror may have for doing the work cheaper or better.

I bet you will find a Comp. Gen. protest case at a certain point. Then after the protest, you will find a clarification to the guidelines.

I don’t think this is a question of which regulation takes precedence. I can’t find any of this in the GSA Acquisition Regulation.

If the Comp Gen. had just given me a pointed reminder of a well established rule, I might not change anything if I could avoid it. I would just make an extra effort to make sure that everyone will comply with the Comp. Gen.’s guidance in the future.

In any case, it seems to me that if we are using some other agency’s contract, we must play by their rules. Keep in mind that the Contracting Officer for the contract is the GSA Contracting Officer.

Eric

By John Ford on Thursday, February 08, 2001 - 02:09 pm:

Bob, Eric, GSA has its own procurment statute. DoD has its own procurement statute. Under the OFFP Act, when the FAR was created, regulations issued pursuant to the GSA and DoD authorities became subordinated to the FAR. For an agency to have procurement policies that differ from the FAR, the agency must either issue a deviation to the FAR provisions, in which case the deviation would only apply within that agency, or have specific statutory authority to do something other than what is required by the FAR. I don't see either for GSA's non-regulatory (and doubtful contractual, at least for some contractors) ordering procedures.
As regards the FSS contract being issued by a GSA contracting officer, it is equally important to note that contracting officers from other agencies who place orders against GSA schedules derive their authority from their employing agency not GSA and are bound to follow the regulations of their agency and higher authority. Which again leads me to my question, in light of the demise of the Brooks Act, what is the authority of GSA to establish procedures that supercede FAR requirements?

By bob antonio on Thursday, February 08, 2001 - 02:47 pm:

John:

I would have to do research to settle the authority issue in my mind.

This is a bit off the subject but it is something I have always found interesting. It is a section of the Department of Energy's DEAR that discusses the legislation that authorizes it. It annoyed me for years but I never made a point out of it.

Notice the law that is excluded from the authority.

"901.102. Authority

The DEAR and amendments thereto are issued by the Procurement Executive pursuant to a delegation from the Secretary in accordance with the authority of section 644 of the Department of Energy Organization Act (42 U.S.C. 7254), section 205(c) of the Federal Property and Administrative Services Act of 1949, as amended, (40 U.S.C. 486(c)), and other applicable law."

By John Ford on Thursday, February 08, 2001 - 05:02 pm:

Bob, interesting list of authorities.
Regarding my previous posts, note the authority of GSA has been raised as a question, not as a position. It has been my inclination to ask why things are now when there appears to be some question on that matter.

By John Ford on Thursday, February 08, 2001 - 05:03 pm:

In my previous message, "now" should be "done."

By Eric Ottinger on Thursday, February 08, 2001 - 05:48 pm:

John,

Take a look at Computer Products Inc., B-284702.

“See http://pub.fss.gsa.gov/schedules/ordinssv.cfm. This guidance states that the special ordering procedures take precedence over the procedures in Federal Acquisition Regulation (FAR) sect. 8.404. The special ordering procedures are apparently designed to address the concern that, when a schedule contains services priced at hourly rates, merely comparing competing vendors' hourly rates, without regard to the number of hours or mix of labor categories the different vendors would use, is an inadequate indicator of which vendor represents the lowest price. We note that the procedures call for vendors to be provided a performance-based statement of work, which presumably would allow vendors to propose differing levels of effort and labor category mixes. In this regard, it is unclear why, in this case, the Navy dictated a level of effort of 11,955 labor hours, which limited vendors' ability to craft innovative solutions, or why, given thatit dictated the level of effort, it did not provide for the evaluation ofthe labor categories that would be employed under this order. As indicated below, we find this to be a fundamental defect in the solicitation.”

“In crafting our recommendation, we must address the fact that the RFQ is fundamentally defective. We see no rational basis for dictating a level of effort of 11,955 hours while allowing vendors to propose different labor mixes, NOR DO WE BELIEVE THAT THE AGENCY CAN RATIONALLY SELECT A VENDORWITHOUT EVALUATING THE DIFFERENT LABOR MIXES OR ASSESSING WHETHER THEVENDORS' PROPOSED SOLUTIONS SATISFY THE AGENCY'S NEEDS. This is trueregardless of whether the solicitation calls for a cost/technical tradeoff or selection of the low-cost, technically acceptable solution.”

http://www.access.gpo.gov/su_docs/aces/aces170.shtml

Like I said, GSA was echoing the Comp. Gen. I don’t think we need any more authority or explanation.

Eric

By John Ford on Friday, February 09, 2001 - 03:35 pm:

Eric, I don't see your point. I brought up the Computer Products decision earlier. It does not endorse the GSA guidelines. It merely recites what they say. The GSA guidelines were in effect before this decision. The Navy was trying to defend its actions in this protest by citing to the guidelines.
My point in bringing up this decision is that the GAO doesn't quite know how to characterize the guidelines. One thing is clear, it was not asked to rule on their validity and did not do so or comment on their relationship to the FAR (other than simply state what the guidelines say). This parroting of the guidelines was not an endorsement or condemnation of them.
This decision is simply irrelevant to the authority question I posed.

By Anonymous on Friday, February 09, 2001 - 03:48 pm:

After all is said and done...who cares? We cannot follow schedule instructions,many agencies use the FSS Service schedules to avoid the CSRA and to circumvent the statutes on personal services. And please don,t tell me I am wrong. I saw an agency buy assistant facilitators off a MOBIS for watchstanding duties.It goes on and on. And even though many of you know exactly how to comply and still use reason what is you reward? Nada.Zip. Zilch. Nobody loves a KO. No....boooooo0dy. Still some of you try ....and suceed. I admire your tenacity and your knowledge. And your common sense.....still? Try this. Go to Arnet click on cbd....try a simple search...keywords "Part 12. Find more than four per cent that comply with the rules as you know them. And then we will talk.

By Eric Ottinger on Friday, February 09, 2001 - 06:00 pm:

John,

Yes, the GSA rule predates that particular case. However, the doctrine stated by the Comp. Gen. predates both this case and the GSA rule.

Since they are both wonderfully in sync, I can’t see why I or any other practical contracting person would wish to pursue the point any farther.

It seems to me that a COR/COTR or ordering officer is required to follow any written direction from the Contracting Officer responsible for the contract. I admit that I find this so self-evident, I have no idea how I would proceed to argue the point with you.

Anon,

Thanks for confirming the point that I made for Ms. Jenny’s benefit that it is usually our mothers who love us. On the other hand, thanks for the good words about “tenacity, knowledge and common sense.”

Eric

By John Ford on Sunday, February 11, 2001 - 04:48 pm:

Eric, the point is that the GSA guidance does not appear in all contracts. Thus, your argument fails for those contracts.
The guidance at issue in the Computer Products decision did not appear to be in the schedule as the GAO only referenced the FSS website. Thus, in this regard my question remains, what authority does GSA have to publish guidance that is contrary to the FAR?
As regards guidance by a contracting officer that is contained in a contract, my question would be is that guidance clearly contrary to the FAR? If it is, I hope you are not advocating following guidance that is patently erroneous. In any event, one must question an individual contracting officer's ability to countermand the FAR.